THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP No.168/2024 Reserved on: 27.02.2025 Pronounced on:-02.04.2025 ABDUL AHAD ALIAS AHAD MOLVI ...PETITIONER(S) Through: - Mr. Usman Gani, Advocate vs. UT OF J&K & OTHERS …RESPONDENT(S) Through: - Mr. Syed Musaib Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner has challenged detention order bearing No.12/DMB/PSA/2024 dated 04.04.2024, issued by District Magistrate, Baramulla, in exercise of powers conferred by clause (a) of Section 8 of the J&K Public Safety Act, 1978, whereby the detenue, namely, Abdul Ahad Dar @ Ahad Molvi has been placed under preventive detention so as to prevent him from indulging in the activities which are prejudicial to the security of the State. 2) It has been contended by the petitioner that the impugned detention order has been passed without application of mind as the grounds of detention are vague, non-existent and stale on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the 2 WP(Crl) No.168/2024 material has not been provided to the petitioner. It has been further urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order as the detenue was already admitted to bail in some of the FIRs mentioned in the grounds of detention but the said fact is not mentioned in the grounds of detention. 3) The respondents, in their counter affidavit, have contended that none of the legal rights of the petitioner have been infringed or violated. It has been further contended that the activities of the detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It has been further contended that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is also averred in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 3 WP(Crl) No.168/2024 4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments, was on the following grounds: (i) that the impugned order of detention is based upon stale incidents having no proximate link the activities alleged to be prejudicial to the security of the State. (ii) That whole of the material that formed basis of the grounds of detention has not been supplied to the petitioner, thereby violating his right of making an effective representation against his detention. 5) So far as the first ground of challenge is concerned, a perusal of the grounds of detention would reveal that reference has been made to incidents regarding which eight different FIRs have been registered. These FIRs include FIR No. 26/2013 of Police Station, Pattan, FIR No. 45/2013 of Police Station, Pattan, FIR No. 144/2016 of Police Station, Pattan, FIR No. 210/016 of Police Station, Pattan, FIR No. 260/2016 of Police Station, Pattan, FIR No. 275/2016 of Police Station, Pattan, FIR No. 83/2017 of Police Station, Pattan and FIR No. 2009/2018 of Police Station, Pattan. All these incidents pertain to a period which is about six years prior to the passing of the impugned detention order. In the grounds of detention, there is no mention of any fresh activity pertaining to the petitioner. It has been stated in the grounds of detention that the petitioner has been 4 WP(Crl) No.168/2024 assigned a role in carrying out anti national activity to disturb the smooth and peaceful conduct of the General Lok Sabha Elections 2024 without there being any activity attributed to the petitioner after the registration of last FIR against him in the year 2018. Thus, it is clear that the order of detention passed against the petitioner is based upon past and stale incidents. 6) So far as the next ground of challenge is concerned, a perusal of the receipt of grounds of detention, which is available in the detention record reveals that the petitioner has received grounds of detention consisting of two leaves and other documents (14) leaves. What were these (14) leaves have not been mentioned in the receipt of grounds of detention.. 7) If we have a look at the grounds of detention, it bears reference to as many as eight FIRs viz. FIR Nos.26/2013, 45/2013, 144/2016, 210/2016, 260/2016, 275/2016, 83/2017 and 209/2018 registered with P/S Pattan. It was incumbent upon the respondents to furnish not only copies of the FIRs but also the statements of witnesses recorded during investigation of the said FIRs and other material on the basis of which petitioner’s involvement therein is shown, which has not been done. All this material would run in dozens of pages and it is impossible that all this material would be covered in only fourteen leaves. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, 5 WP(Crl) No.168/2024 while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 8) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440. 6 WP(Crl) No.168/2024 9) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case. 10) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 02.04.2025 “BhatAltaf-Secy” Whether the order is reportable: Yes/No KARAM CHAND 2025.04.02 17:11 I attest to the accuracy and integrity of this document